Conference Call: A Monumental Decision for the High Court

Posted Mon, March 24th, 2008 12:22 pm by Ben Winograd

The following column by Akin Gump associate Troy D. Cahill, featuring a selected petition up for consideration at the Justices' private conference on March 28, appears in today's edition of Legal Times (available to subscribers here). To see the full list of "petitions to watch" for Friday's conference, click here.

In September 2003, the mayor of Pleasant Grove, Utah, received an unusual letter from Summum “Corky” Ra, the leader of a little-known religious organization based in Salt Lake City. As he had done in other towns in Utah, Ra sought permission to erect a monument to the “Seven Aphorisms of Summum” in a city park, alongside a depiction of the Ten Commandments that had been donated to the city more than three decades prior.

After city officials denied his request, Ra filed a suit alleging a violation of the free speech clause of the First Amendment. The U.S. Court of Appeals for the 10th Circuit eventually agreed, finding the park to be a traditional public forum and the Ten Commandments monument to constitute the private speech of the original donor.

At its private conference on March 28, the Supreme Court will consider whether to grant review in the case, which could impact whether municipalities around the country will continue to display donated monuments on public property. (The petition is No. 07-665, Pleasant Grove City, Utah v. Summum. At the same conference, the justices will also consider petition No. 07-690, Duchesne City, Utah v. Summum, which presents the same issue.)

Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai not with the Ten Commandments, but with a set of seven principles – or aphorisms – that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.

Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)

In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.

The panel reached its decision after concluding the case implicated private speech in a public forum, not government speech. With regard to the type of forum implicated, the panel held that “the nature of the forum in this case is public” because a “city park” is “a traditional public forum.” Therefore, the panel reasoned, “the city’s restrictions on speech are subject to strict scrutiny” – a standard of review that the city’s denial of the Summum’s request would likely fail.

The city petitioned for rehearing en banc, urging the 10th Circuit to overrule circuit precedent holding that a monument donated to a city remains the private speech of the donor. The city contended that, because it owned and controlled the monuments erected in its park, the display of such monuments constitutes government speech that created no forum for private speech and, therefore, the city was free to make content-based or viewpoint-based choices.

The 10th Circuit denied en banc rehearing by an equally divided 6-6 vote. Writing separately, Judge Michael McConnell (in an opinion joined by Judge Neil Gorsuch) and Judge Carlos Lucero dissented from the denial of rehearing en banc. Then-Chief Judge Deanell Reece Tacha, author of the original panel decision, took the “unprecedented step” of filing a separate opinion in response to the dissents and specifically rejected the contention that this was a “government speech” case.

In its petition, Pleasant Grove – represented by Jay Sekulow of the American Center for Law and Justice – argues that the 10th Circuit’s ruling creates two circuit splits on important free speech issues. First, according to the petition, the 10th Circuit made an “analytical misstep” and created a conflict with the decisions of other circuits when it held that a donated monument which is owned, controlled, and displayed by a municipality is not government speech, but instead remains the private speech of the original donor.

Second, the 10th Circuit held that the placement of donated monuments in a government-owned park creates a public forum for monuments, while, according to the petition, other circuits hold that the government retains authority to select which structures, if any, to display. Pleasant Grove also emphasizes the practical impact of the 10th Circuit’s decision by contending that the ruling “creates a right of "equal access’ for the erection of permanent monuments.”

Represented by Pamela Harris of O’Melveny & Myers’ D.C. office, the Summum urges the court to deny certiorari. Depicting the case as “narrow and fact-specific,” the Summum contends that the 10th Circuit’s ruling does not announce a broad new rule and does not conflict with any decision from other circuits.

Instead, the Summum argues, the decision turns on the fact that the city historically has treated permanent displays on public property as private speech. Also limiting the scope of the decision, according to the Summum, is the fact that the decision only applies to privately donated and unsolicited displays and reaches only public parks and other public spaces that historically have been treated as public fora.

According to the Summum, these factors, in conjunction with the fact that the decision below arises from a denial of a preliminary injunction as opposed to a final judgment, make this case a poor candidate for Supreme Court review.

The Supreme Court may announce whether it will hear the case as early as March 31. – Troy D. Cahill

On Friday the justices will meet for their March 23 conference; our "petitions to watch" for that conference will be available soon.

Major Cases

Trump v. Hawaii(1) Whether the respondents’ challenge to the president’s suspension of entry of aliens abroad is justiciable; (2) whether the proclamation – which suspends entry, subject to exceptions and case-by-case waivers, of certain categories of aliens abroad from eight countries that do not share adequate information with the United States or that present other risk factors – is a lawful exercise of the president’s authority to suspend entry of aliens abroad; (3) whether the global injunction barring enforcement of the proclamation’s entry suspensions worldwide, except as to nationals of two countries and as to persons without a credible claim of a bona fide relationship with a person or entity in the United States, is impermissibly overbroad; and (4) whether the proclamation violates the establishment clause of the Constitution.

Gill v. Whitford(1) Whether the district court violated Vieth v. Jubelirer when it held that it had the authority to entertain a statewide challenge to Wisconsin's redistricting plan, instead of requiring a district-by-district analysis; (2) whether the district court violated Vieth when it held that Wisconsin's redistricting plan was an impermissible partisan gerrymander, even though it was undisputed that the plan complies with traditional redistricting principles; (3) whether the district court violated Vieth by adopting a watered-down version of the partisan-gerrymandering test employed by the plurality in Davis v. Bandemer; (4) whether the defendants are entitled, at a minimum, to present additional evidence showing that they would have prevailed under the district court's test, which the court announced only after the record had closed; and (5) whether partisan-gerrymandering claims are justiciable.

Carpenter v. United StatesWhether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Conference of March 23, 2018

Johnson v. Stinson Whether Johnson v. Jones precludes a federal appellate court from exercising jurisdiction over a challenge to a denial of qualified immunity that turns not upon disputed facts, but upon the disputed application of the inferences drawn by the district court from the facts, in concluding that a reasonable jury could find a violation of a constitutional right which was clearly established; and (2) whether the U.S. Court of Appeals for the 7th Circuit, sitting en banc, applied an impermissibly broad reading of Johnson v. Jones in vacating the opinion of the U.S. Court of Appeals for the 7th Circuit's three-judge panel and denying jurisdiction over Dr. Lowell T. Johnson's appeal, where the appeal sought review of the district court's determination that a reasonable jury could find that Dr. Johnson violated respondent's right to due process.